for the district of new mexico state of new...

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO, ex rel. STATE

ENGINEER,

Plaintiff,

v.

R. LEE AAMODT, et al.,

Defendants.

and

UNITED STATES OF AMERICA

PUEBLO DE NAMBE,

PUEBLO DE POJOAQUE

PUEBLO DE SAN ILDEFONSO,

and PUEBLO DE TESUQUE,

Plaintiffs-in-Intervention

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CASE NO. 6:66-cv-6639 WJ/WPL

PLAINTIFFS-IN-INTERVENTION THE UNITED STATES, PUEBLO DE NAMBÉ, PUEBLO DE POJOAQUE, PUEBLO DE SAN ILDEFONSO,

AND PUEBLO DE TESUQUE’S MEMORANDUM REPLY BRIEF IN SUPPORT OF APPROVAL OF THE SETTLEMENT AGREEMENT AND ENTRY

OF PARTIAL FINAL JUDGMENT AND DECREE AND INTERIM ADMINISTRATIVE ORDER

Case 6:66-cv-06639-WJ-WPL Document 10011 Filed 02/04/15 of 36

i

TABLE OF CONTENTS

Table of Authorities ........................................................................................................................ ii

I. Introduction ............................................................................................................................. 1

II. Applicable Legal Standard ...................................................................................................... 3

III. Argument ................................................................................................................................. 6

A. Objections to the Future Administration of Water Rights do Not Present a Basis to

Disapprove the Settlement Agreement or to Decline to Enter the Partial Final Judgment

and Decree .......................................................................................................................... 6

1. The Partial Final Judgment and Decree and proposed settlement implementation and

administration are not unlawful and fully comply with State law ................................. 7

a. The Dunn Response misinterprets the Settlement Agreement terms with regard to

State law regarding priority administration ............................................................... 8

b. The Settlement Agreement provides for administration fully consistent with State

law .............................................................................................................................. 9

2. Concerns regarding the administration of the Settlement Agreement are speculative

and do not provide a basis to disapprove the Settlement Agreement or to decline to

enter the Partial Final Judgment and Decree ................................................................ 13

B. The Settlement Agreement and Entry of the Partial Final Judgment and Decree Do Not

Unfairly Impact Non- Settling Parties .............................................................................. 15

C. The Responses Fail to Substantiate Any Legal or Factual Objections to the Settlement

Agreement or Partial Final Judgment and Decree ............................................................ 17

1. The Settlement Agreement and Partial Final Judgment and Decree properly utilize

federal law to quantify the Pueblos’ water rights ......................................................... 17

2. The State properly executed the Settlement Agreement and is a proper party ............ 20

3. The Settlement Agreement does not violate any property rights ................................. 21

D. No Response Establishes the Need for Additional Procedures ........................................ 26

IV. Conclusion ............................................................................................................................. 28


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TABLE OF AUTHORITIES Cases

Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545 (1983) ........................................19

Bounds v. State ex rel. D’Antonio, 306 P.3d 457 (N.M. 2013) ..........................................14, 22

Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976) ..................17

In re the General Adjudication the Rights to Use Water in the Gila River System, 173

P.3d 440 (Ariz. 2007)...........................................................................................................5, 19

In Re The General Adjudication the Rights to Use Water in the Gila River System and

Source, 224 P.3d 178 (Ariz. 2010) ............................................................................................5

Jicarilla Apache Tribe v. United States, 601 F.2d 1116 (10th Cir. 1979) ...............................18

Johnson v. Lodge #93 of Fraternal Order of Police, 393 F.3d 1096 (10th Cir. 2004)........5, 27

Landis v. N. Am. Co., 299 U.S. 248 (1936) .............................................................................27

Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S.

501 (1986) ............................................................................................................................5, 21

Morton v. Mancari, 417 U.S. 535 (1974) ..........................................................................17, 18

Mugler v. Kansas, 123 U.S. 623 (1887) ..................................................................................23

Nevada v. United States, 463 U.S. 110 (1983) ........................................................................26

New Mexico ex rel. Clark v. Johnson, 904 P.2d 11 (N.M. 1995) ............................................20

New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976) ............................................17, 18, 19

New Mexico ex rel. Reynolds v. Aamodt, 618 F. Supp. 993 (D.N.M. 1985) .......................9, 18

New Mexico ex rel. Reynolds v. Aamodt, 800 P.2d 1061 (N.M. 1990) ...................................14

New Mexico ex rel. State Eng’r v. Aamodt, 582 F. Supp. 2d 1313 (D.N.M. 2007) ...........2, 3, 4

New Mexico ex rel. Office of State Engineer v. Lewis, 150 P.3d 375 (N.M. Ct.

App. 2006) .....................................................................................................................5, 11, 12

New Mexico ex rel. Reynolds v. Lewis, 508 P.2d 577 (N.M. 1973).........................................21


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N.M. Indus. Energy Consumers v. N.M. Pub. Serv. Comm’n, 808 P.2d 592 (N.M. 1991) ......13

Ratzlaff v. Seven Bar Flying Serv., Inc., 646 P.2d 586 (N.M. Ct. App. 1982) ........................27

San Juan Cnty., Utah v. United States, 503 F.3d 1163 (10th Cir. 2007) .................................21

Texas v. United States, 523 U.S. 296 (1998) ...........................................................................13

Tri-State Generation & Transmission Ass’n, Inc. v. D’Antonio, 289 P.3d 1232

(N.M. 2012) .............................................................................................................................10

United States v. Bluewater-Toltec Irr. Dist., 580 F. Supp. 1434 (D.N.M. 1984) ....................26

United States v. Chem. Found., 272 U.S. 1 (1926) ....................................................................8

Utah v. U.S. Dep’t of Interior, 535 F.3d 1184 (10th Cir. 2008) ..............................................13

Walker v. United States, 162 P.3d 882 (N.M. 2007) ...............................................................21

Statutes

28 U.S.C. § 2283 ......................................................................................................................23

28 U.S.C. § 2284 ......................................................................................................................23

43 U.S.C. § 666 ............................................................................................................17, 18, 19

Aamodt Litigation Settlement Act, Pub. L. 111-291, 124 Stat. 3149 (Dec. 8, 2010) .........2, 20

N.M. Stat. Ann. § 36-1-22 .......................................................................................................21

N.M. Stat. Ann. § 72-1-2 .........................................................................................................22

N.M. Stat. Ann. § 72-2-8 .........................................................................................................14

N.M. Stat. Ann. § 72-2-9 .........................................................................................................24

N.M. Stat. Ann § 72-4-15 ........................................................................................................21

N.M. Stat. Ann. § 72-4-17 .......................................................................................................21

N.M. Stat. Ann. § 72-4-19 .......................................................................................................26

N.M. Stat. Ann. § 72-12-1.1 ..............................................................................................14, 22


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Regulations

N.M. Admin. Code § 19.27.5.9................................................................................................21

N.M. Admin. Code § 19.27.5.13..............................................................................................14

Other Authorities

Special Master’s Report and Recommendations Regarding Objections to Partial Final

Judgment and Decree on the Water Rights of Taos Pueblo, No. 69-cv-07896 (Jan. 23,

2015) (Doc. 5927) ......................................................................................................................4

Order, New Mexico v. Interstate Stream Comm’n, No. 34,702 (N.M. May 30, 2014) ...........20

H.J.M. 22, Indian Water Rights Disputes Funding, Reg. Sess. (N.M. 2013) ..........................21

H.M. 3, Native American Water Rights Settlement Funds, Reg. Sess. (N.M. 2006) ..............21


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I. INTRODUCTION.

This Memorandum replies to the Response in Opposition to Motion to Approve

Settlement Agreement and Entry of Proposed Partial Final Judgment and Decree, filed by

objecting defendants represented by A. Blair Dunn (Jan. 5, 2015) (Doc. 9972) (“Dunn Resp.”),

and the Objectors’ Response to Motions in Support of Entry of a Partial Final Judgment and

Decree, filed by objecting defendants represented by Lorenzo Atencio (Jan. 7, 2015) (Doc. 9973)

(“Atencio Resp.”)1 (collectively, “Responses”). It also addresses certain points raised in the Rio

de Tesuque Association, Inc.’s Memorandum in Support of Settlement Agreement and Entry of a

Partial Final Decree on the Pueblos’ Rights, filed by settling defendants represented by Larry C.

White (Nov. 6, 2014) (Doc. 9911) (“White Mem.”), and Certain Non-Pueblo Defendants’

Memorandum in Support of Entry of Partial Final Judgment and Decree Incorporating

Settlement Agreement and Adjudicating Pueblos’ Water Rights, filed by settling defendants

represented by Mark F. Sheridan (Nov. 6, 2014) (Doc. 9912) (“Sheridan Mem.”). For the

reasons set forth here and in the Memorandum of Points and Authorities in Support of Entry of

Partial Final Judgment and Decree (Nov. 6, 2014) (Doc. 9910) (“U.S. & Pueblos Mem.”) and

the State of New Mexico, Santa Fe County and City of Santa Fe’s Joint Memorandum in Support

of Settlement (Nov. 6, 2014) (Doc. 9913) (“State Mem.”), the Court should approve the

Settlement Agreement and enter the Partial Final Judgment and Decree and Interim

Administrative Order.

The Court has before it two separate but interrelated tasks. The Court must first

determine whether to approve the Settlement Agreement (Apr. 19, 2012) (Doc. 7970-1)

1 The Atencio Response was filed after the deadline established by the Court, and should not be

considered for that reason alone. In the event the Court considers it, this Reply demonstrates

why the Court should reject the Atencio Response’s arguments.


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(“Settlement Agreement”)2 which establishes certain rights and responsibilities among the

Settlement parties. Second, it must determine whether to enter the [Proposed] Partial Final

Judgment and Decree of the Water Rights of the Pueblos of Nambé, Pojoaque, San Ildefonso,

and Tesuque (Oct. 2, 2013) (Doc. 7970-3) and the [Proposed] Interim Administrative Order

(Oct. 2, 2013) (Doc. 7970-2) (collectively, “Partial Final Judgment and Decree”). The

Settlement Agreement will be effective as to those parties who voluntarily join the Settlement

and will govern the administration of the rights subject to the Settlement Agreement. The Partial

Final Judgment and Decree, which will be binding on all parties, (1) establishes the quantity and

priority of the water rights for the Pueblos of Nambe, Pojoaque, San Ildefonso and Tesuque

(collectively, “Pueblos”); and (2) provides for the administration of the Pueblos’ rights in

accordance with the Settlement Agreement.

If entered by the Court, the Partial Final Judgment and Decree is the final order and

adjudication of the rights of the Pueblos in this stream adjudication and, as such, will bind all

parties. The process established by the Court to consider approval of the Settlement Agreement

and entry of the Partial Final Judgment and Decree allowed any party to file an objection where

that party believed his or her water right would be specifically harmed by approval of the

Settlement Agreement and entry of the Partial Final Decree. See New Mexico ex rel. State Eng’r

v. Aamodt, 582 F. Supp. 2d 1313, 1315 (D.N.M. 2007) (“Aamodt III”). Objecting parties were to

file responsive memoranda in support of their objections which “describe the specific harm the

Objectors would suffer by entry of the Partial Final Decree . . . .” Case Management and Service

Order at 7 (Aug. 8, 2014) (Doc. 9506) (“CMO”). Objecting parties were further ordered to

“address with specificity why approval of the Settlement Agreement and entry of the Partial

2 The Aamodt Litigation Settlement Act, Pub. L. 111-291, §§ 601-26, 124 Stat. 3149, 3134-56

(Dec. 8, 2010) (“Settlement Act”), codified the Settlement Agreement which is now federal law.


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Final Decree is not fair, adequate, reasonable, is not in the public interest, or is not consistent

with applicable law.” Id. (quotation marks and citation omitted).

As shown below, the objections in the two Responses fail to demonstrate approval of the

Settlement Agreement and entry of the Partial Final Judgment and Decree is “not fair, adequate,

reasonable, is not in the public interest, or is not consistent with applicable law” or that

Settlement Agreement approval and entry of the Partial Final Judgment and Decree will harm

any objectors’ water right in a specific and legally cognizable way. See Aamodt III, 582 F. Supp.

2d at 1315; CMO at 7 (quotation marks and citations omitted). The objections and arguments

raised in the Responses are either incorrect, irrelevant to the issues before the Court, or premised

on a misreading of the Settlement Agreement and applicable law. Accordingly, the Court should

(1) approve the Settlement Agreement; and (2) enter the Partial Final Judgment and Decree.

II. APPLICABLE LEGAL STANDARD.

The standard and procedure for the Court’s consideration of the objections to approval of

the Settlement Agreement and entry of a Partial Final Judgment and Decree is long established in

this case:

Each response must describe the specific harm the Objectors would suffer by

entry of the Partial Final Decree, [and] address with specificity why approval of

the Settlement Agreement and entry of the Partial Final Decree is not fair,

adequate, reasonable, is not in the public interest, or is not consistent with

applicable law. Objectors should also describe with specificity which of the

Settlement Parties’ allegations are disputed, state why their objections should be

sustained or not overruled at this time, support their legal positions with legal

authority, and support factual positions with materials which demonstrate either

that (1) the factual position at issue is not disputed or (2) further proceedings are

required to address relevant factual matters. If any party filing a response asserts

that additional procedures are required before the Court addresses his/her

objections to approval of the Settlement Agreement, those parties shall set forth

those procedures and the reasons that those procedures are required. Legal

positions must be supported by legal authority; factual positions must be

supported by authority which demonstrates that there are no disputed material

facts at issue.


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CMO at 7-8 (internal quotation marks and citations omitted); see also Aamodt III, 582 F. Supp.

2d at 1315 (“The Court will require that any person objecting to the settlement agreement must

state in their objection how the objector will be injured or harmed by the settlement agreement in

a legally cognizable way.”).3 The Responses, which do not dispute that the “fair and reasonable

standard” applies, see Dunn Resp. at 4; Atencio Resp. at 3, fail to demonstrate that the

Settlement Agreement and Partial Final Judgment and Decree are not fair, adequate, reasonable,

in the public interest, and consistent with applicable law. The Dunn Response is quite limited

and does not satisfy the Court’s standard. Its attack focuses primarily on the future

administration of water rights that would allegedly occur if the Court enters the Partial Final

Judgment and Decree. See Section III.A.1.a, III.B, infra. Similarly, the Atencio Response does

not mount a legally sustainable opposition to the Settlement Agreement, and its attempt to create

a factual dispute is both superficial and irrelevant, and even if relevant, fails to demonstrate any

issue of fact. See Section III.C, infra.

The Sheridan Memorandum, filed prior to the objecting Responses, attempts to alter the

standard the Court has established for the entry of the Partial Final Judgment and Decree.

Although it acknowledges the Court will review the Settlement Agreement under the fair and

reasonable standard, Sheridan Mem. at 2, 10, it argues for the imposition of a different, and

legally unsupported standard that the Partial Final Judgment and Decree be entered only if “there

is a reasonable basis to conclude that the water rights to be adjudicated to each Pueblo are no

more extensive than could be secured at a trial, and that the Agreement and the PFJD will reduce

or eliminate impacts on junior water rights,” id. at 2-3. This requirement is incorrect. Where an

3 After opening briefs were filed here, the Rio Taos/Rio Hondo Adjudication Special Master has

adopted the fair and reasonable standard established in this case. See Special Master’s Report

and Recommendations Regarding Objections to Partial Final Judgment and Decree on the

Water Rights of Taos Pueblo, No. 69-cv-07896 at 9-10 (Jan. 23, 2015) (Doc. 5927).


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objecting party is provided the opportunity “to file written objections to the consent decree in the

district court, and to participate in the fairness hearings as a full party to the litigation[,]” the

objecting party is “afforded ‘all the process that [it] was due,’” Johnson v. Lodge #93 of

Fraternal Order of Police, 393 F.3d 1096, 1109 (10th Cir. 2004) (quoting Local No. 93, Int’l

Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S. 501, 529 (1986)), and no

further merits based inquiry is required. Here, the objecting parties have failed to make a

colorable claim that their water rights, which are not determined under either the Settlement

Agreement or Partial Final Judgment and Decree, “would be or have been adversely affected by

the settlement agreement and decree.” New Mexico ex rel. Office of State Engineer v. Lewis, 150

P.3d 375, 394 (N.M. Ct. App. 2006) (“Lewis”). Accordingly, as explained below, there is no

reason for the Court to decline to approve the Settlement Agreement and enter to the Partial Final

Judgment and Decree. Id. at 392 (objecting parties must show that they “will be unjustly harmed

by not receiving the amount of water to which they are entitled”). As articulated throughout the

United States and Pueblos’ Memorandum and in this reply, the Court previously established the

correct standard and procedure by which it would review the Settlement Agreement and the

Partial Final Judgment and Decree and that should remain unchanged. Nevertheless, the

Sheridan Memorandum asks the Court to revisit the issue and argues for application of a new

merit-based standard and review procedure. Sheridan Mem. at 10 and Ex. A at 7-8. Notably, in

its reliance on the 1990 Arizona Supreme Court Order governing Indian water rights settlements

in the Gila River Basin, the Sheridan Memorandum argument ignores the Arizona Supreme

Court’s review and application of the very language on which it relies. See In re the General

Adjudication the Rights to Use Water in the Gila River System, 173 P.3d 440 (Ariz. 2007) (“Gila

VII”); In Re The General Adjudication the Rights to Use Water in the Gila River System and


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Source, 224 P.3d 178, 187 (Ariz. 2010) (“Gila VIII”). This review and application is not

consistent with what the Sheridan Memorandum proposes.

The Court has determined the appropriate standard for evaluating the Settlement

Agreement and Partial Final Judgment and Decree in this case. The Court need not adopt a new

or different standard for the entry of the Partial Final Judgment and Decree which the Sheridan

Memorandum represents was applied in other adjudications. Under the established standard in

this case, the Court should find the Settlement Agreement and Partial Final Judgment and Decree

are fair and reasonable, in the public interest, and consistent with all applicable laws. None of

the Responses, nor the objections filed by the April 7, 2014 deadline, demonstrate that approval

of the Settlement Agreement or entry of the Partial Final Judgment and Decree do not satisfy this

standard or would otherwise harm any water user.

III. ARGUMENT.

A. Objections to the Future Administration of Water Rights do Not Present a Basis to Disapprove the Settlement Agreement or to Decline to Enter the Partial Final Judgment and Decree.

The Dunn Response relies on speculative and hypothetical issues that may arise when the

Office of the State Engineer (“OSE”) administers water rights in the Nambé-Pojoaque-Tesuque

Basin (“Basin”). Based on its speculation, the Dunn Response objects that the Settlement

Agreement “create[s] law” on priority administration. Dunn Resp. at 2. What is significant is

that the Dunn Response does not challenge the determination of the Pueblos’ water rights in the

Settlement Agreement and Partial Final Judgment and Decree. Id. at 16 (“The issue of the

objectors is not the water acreage sought to be established by the United States on behalf of the

Pueblos.”). It does not object to the four corners of the Settlement Agreement, the Partial Final

Judgment and Decree, or the quantity of the Pueblos’ water rights. Id. at 2 (“Defendant-


7

Objectors do not contest that water rights of the Pueblos are and should be adjudicated in

accordance with previous decisions of this Court and the 10th Cir. Court of Appeals . . . .”).4

1. The Partial Final Judgment and Decree and proposed settlement implementation and

administration are not unlawful and fully comply with State law.

While the Settlement Agreement and the administrative provisions of the Partial Final

Judgment and Decree provide for the Pueblos to forgo priority calls against non-Pueblo settling

parties under certain circumstances, those provisions do not direct that in administering the

Partial Final Judgment and Decree, the OSE must administer the Basin so that the Pueblos

remain whole despite the concessions to the settling parties in the Settlement Agreement.

Rather, those provisions may allow for a sharing of physical shortages among the parties to the

Settlement Agreement. The provisions do not require the non-settling parties to fill any shortfall

resulting from the Pueblos’ concessions to the settling parties; the provisions only require the

non-settling parties to make up any deficit resulting from their own junior water use. In other

words, there is no requirement to read the Settlement Agreement and Partial Final Judgment and

Decree to place the non-settling parties in any different position than they are today—that is,

subject to a call by the senior rights of the Pueblos.

4 The Court’s order is clear: objecting parties were required to address the harm to them from

entry of the Partial Final Judgment and Decree and approval of the Settlement Agreement with

specificity. Objecting parties were further required to show why the Settlement Agreement was

“not fair, adequate, reasonable, is not in the public interest, or is not consistent with applicable

law.” CMO at 7 (internal citation omitted). The Dunn Response purports to do so only with

respect to its misguided view that the Settlement Agreement wrongly distorts the administration

of non-Pueblo water rights and, under that distorted view, is not authorized under state law. As

such, it must be rejected, any objections by the Dunn Parties that were not briefed in accordance

with the CMO were waived.


8

a. The Dunn Response misinterprets the Settlement Agreement terms with

regard to State law regarding priority administration.

The Dunn Response’s sole challenge is grounded in a hypothetical, and faulty, method of

administration of water rights in the future, although Dunn characterizes the challenge as one to

the Settlement Agreement under State and Federal law. Id. at 3. Regardless, both the Settlement

Agreement and proposed future administration under the Partial Final Judgment and Decree fully

comport with the doctrine of prior appropriation and all other aspects of state law and no

objector, or any water user in the Basin, is harmed.5 Dunn asks this Court to presume, in the

absence of any evidence, that the OSE will adopt regulations to administer the basin that violate

applicable law, and this is something a Court should not do. See United States v. Chem. Found.,

272 U.S. 1, 14-15 (1926) (“The presumption of regularity supports the official acts of public

officers, and, in the absence of clear evidence to the contrary, courts presume that they have

properly discharged their official duties.”).

The Dunn Response has one fundamental complaint about the Settlement Agreement and

the Partial Final Judgment and Decree. It mistakenly contends that entry of the Partial Final

Judgment and Decree will disadvantage non-settling parties against non-Pueblo settlement

parties in the event of a priority call by the Pueblos, or that in administration of Pueblo rights

under the Partial Final Judgment and Decree, the priority protections afforded non-Pueblo water

users under the Settlement Agreement will result in a detriment to the non-settling parties. Dunn

Resp. at 2-3, 16. The hypothetical set forth in the Dunn Response, at 3, underscores the

confusion which that Response creates between quantification of the Pueblo water rights in the

5 The rules necessary to fully implement the administration are under development and will

include a clear accounting mechanism to lawfully effectuate the provisions of the Settlement

Agreement, and such rules will comply with all Court rulings and all applicable law, including

the law of prior appropriation.


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Partial Final Judgment and Decree and ultimate administration of those rights by the OSE

consistent with the Settlement Agreement. The hypothetical describes two non-Pueblo parties

who made different elections with respect to the Settlement Agreement, and then speculates on

the outcome of those different choices under priority administration after the Partial Final

Judgment and Decree is entered. This hypothetical ignores the fact that the parties made choices

to either limit their water right in exchange for protection from strict priority administration, or to

not limit their right and remain—as they always have been—subject to priority administration.

Moreover, under State administration of the Settlement Agreement, the posed hypothetical need

not occur. There is no new law being created “that elevates certain junior water rights over other

senior water rights during a priority call.” Dunn Resp. at 10-11.6 The Settlement Agreement and

Partial Final Judgment and Decree do not change the status quo. Both before and after approval

of the Settlement Agreement and entry of the Partial Final Judgment and Decree, the Pueblo and

non-Pueblo rights in the Basin will be subject to priority administration in accord with the law of

prior appropriation embodied in New Mexico law.

b. The Settlement Agreement provides for administration fully consistent with

State law.

The Pueblo rights are the senior rights in the Basin. See New Mexico ex rel. Reynolds v.

Aamodt, 618 F. Supp. 993, 1010 (D.N.M. 1985) (“Aamodt II”). All other rights are junior and

subject to a priority call by the Pueblos in times of shortage. See id. Under the Settlement

Agreement, some junior, non-Pueblo water users have, by choice, limited their water use,

thereby decreasing impacts on available water supply, and in exchange will be free from

6 The Dunn Response appears to be limited to issues regarding ground water administration.

See, e.g., Dunn Resp. at 3 (hypothetical regarding administration of groundwater water rights).

Regardless, whether surface or groundwater, the Dunn Response raises no valid argument that

the Settlement Agreement is illegal because it violates the doctrine of prior appropriation.


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enforcement of any potential priority call by the Pueblos. See Settlement Agreement § 3.1.7.

However, that amount of water relating to priority-protected non-Pueblo water rights will not be

the subject of priority call for the benefit of the Pueblos as against either junior or senior non-

Pueblo users who have chosen not to join the Settlement and reduce water use so as to be free

from priority enforcement. No water user will be injured by not joining the Settlement

Agreement, because under the Partial Final Judgment and Decree they will be subject to the

same priority administration which exists today, but in a more secure supply, and in an amount

relative only to their water rights.7 “A junior water rights holder cannot complain of deprivation

when its water is curtailed to serve others more senior in the system, regardless of whether the

junior’s rights have been formally adjudicated. Such are the demands of our state’s system of

prior appropriation.” Tri-State Generation & Transmission Ass’n, Inc. v. D’Antonio, 289 P.3d

1232, 1243 (N.M. 2012).

Arguing that the Settlement Agreement’s administrative provisions are contrary to the

law regarding priority administration, the Dunn Response appears to assume that the OSE will

create an administrative scheme of selective enforcement. See Dunn Resp. at 27-28. As

discussed above, however, this is not the case. Regardless, the Dunn Response is based on mere

conjecture. Nothing in the Settlement Agreement violates the New Mexico Constitution or any

other provision of New Mexico law, and nothing in the entry of the Partial Final Judgment and

Decree will harm any non-settling party. The Settlement Agreement provides for priority

administration. The OSE has the right to administer water and the right to do so in a manner

7 The Dunn Response, at 17, appears to miscomprehend the result of a non-Pueblo water rights

holder joining in the Settlement Agreement. Becoming a settling party does not result in the

change in priority date, and does not establish priority dates as between two non-Pueblo water

users. If it did, then there would be no need for the Court to continue to enter orders in each

separate subfile before it.


11

which fully protects all water rights. Exactly how the OSE does this can be flexible and is

entitled to deference. See Settlement Agreement § 5.2.

The New Mexico Court of Appeals’ opinion in Lewis, is highly instructive on this issue.

In Lewis, certain stream adjudication parties objected to the entry of a partial final decree, based

on a settlement agreement among some, but not all, parties, that incorporated a water

conservation plan not unlike the flexible priority administration contemplated by the Settlement

Agreement and Partial Final Judgment and Decree in this case. 150 P.3d at 382. The objectors

argued, like here, that the decree violated the doctrine of prior appropriation and that the district

court did not have the authority to enter a decree based on a settlement agreement. Id. The

settlement agreement, negotiated between the State, the United States, an irrigation district, and a

conservancy district, “placed a priority call in reserve.” Id. at 380, 392. All defendants in the

adjudication, which included members of the irrigation and conservancy districts, were provided

“an opportunity to object to the settlement and propose partial final decree” by making “a prima

facie case showing how their water rights . . . will be adversely affected by the priority, amount,

purpose, periods and place of use, or other matters set forth in the Proposed Partial Final

Decree.” Id. at 381 (internal quotation marks and citations omitted). The district court permitted

dispositive briefing, and overruled all objections, concluding no objector demonstrated an

adverse effect. Id. at 381.

The Court of Appeals affirmed the entry of the decree, stating

By their settlement agreement, the negotiating parties sought to cut the water

shortage Gordian knot through a process more flexible than strict priority

enforcement, yet still comply with the doctrine of prior appropriation. The

settlement agreement and decree are constitutional and an otherwise lawful

resolution of the longstanding water rights and shortages issues.


12

Id. at 385. Concluding that the settlement agreement was consistent with an applicable statute,

the court affirmed the settlement agreement’s “flexible approach” to administration, concluding

it “[saw]no reason to read [the prior appropriation provision of the Constitution] . . . to require a

priority call as the first and only, and thus exclusive, response to water shortage concerns.” Id. at

386. “[A]lthough priority calls have been and continue to be on the table to protect senior users’

rights, such a fixed and strict administration is not designated in the Constitution or laws of New

Mexico as the sole or exclusive means to resolve water shortages where senior users can be

protected by other means.” Id. Lewis found important that priority calls remained an option,

among others, in the settlement agreement to ensure water delivery. Id. at 388.

Lewis held New Mexico’s stream adjudication statutes were not “inconsistent with the

authority of the district court to adjudicate water rights as has occurred through the settlement

agreement and decree.” Id. at 391. Lewis also held the district court did not err in finding no

fact issues prevented approval of the settlement agreement or entry of the decree, as “[t]he court

presumably could have rejected the settlement agreement if it unfairly and adversely affected the

water rights of third parties who were allowed to object to it.” Id. at 392 (emphasis added).

Because the objecting parties made no prima facie showing of harm, however, the settlement

agreement and decree was properly approved. Id. at 394.8 Lewis demonstrates the Settlement

Agreement and Partial Final Judgment and Decree are consistent with New Mexico law.

8 Because the Settlement Agreement and any administration following therefore fully complies

with New Mexico law, the argument by the Dunn Response, at 3, that it “drafts” new law and

therefore requires any additional State approval must be rejected.


13

2. Concerns regarding the administration of the Settlement Agreement are speculative

and do not provide a basis to disapprove the Settlement Agreement or to decline to

enter the Partial Final Judgment and Decree.

As demonstrated in Section III.A.1.b, supra, the Settlement Agreement and its

administration should fully comply with all provisions of State law. Speculative challenges to

that future administration and implementation of the Partial Final Judgment and Decree do not

present a ripe challenge to the Settlement Agreement. “A claim is not ripe for adjudication if it

rests upon contingent future events that may not occur as anticipated, or indeed may not occur at

all.” Texas v. United States, 523 U.S. 296, 300 (1998) (internal quotation marks and citations

omitted). Until the Court approves the Settlement Agreement and the OSE begins administering

water rights in accordance therewith, no challenge to administration is ripe. See Utah v. U.S.

Dep’t of Interior, 535 F.3d 1184, 1196 (10th Cir. 2008) (holding a challenge to future

administrative action not ripe where it was speculative, as the court “would be resolving a nullity

if further administrative action would have afforded the settlement a less dire interpretation”);

see also N.M. Indus. Energy Consumers v. N.M. Pub. Serv. Comm’n, 808 P.2d 592, 599-600

(N.M. 1991) (“The basic purpose of ripeness law is and always has been to conserve judicial

machinery for problems which are real and present or imminent, not to squander it on abstract or

hypothetical or remote problems.”) (internal quotation marks and citations omitted).

To the extent the Responses rest solely on hypothetical constructs regarding future

administration by the OSE, those issues are not ripe for ruling by the Court and do not present

any reason for the Court to disapprove the Settlement Agreement or to decline to enter the Partial

Final Judgment and Decree. Dunn Resp. at 3; Atencio Resp. at 9 (arguing the OSE will have a

“dual system of administration . . . resulting in a double-standard that treats the Pueblos and non-

Indians differently”). The Dunn Response’s hypothetical depiction of injury to non-settling


14

parties does not comply with the directive of the Court to describe in detail the specific “harm”

that would occur to such parties from entry of the Partial Final Judgment and Decree. Indeed,

the Dunn Response provides no specifics at all. It does not (1) describe whether the rights at

issue are from surface supplies or groundwater, (2) identify whether the issue it is raising

supposedly occurs on the main stem of the Pojoaque or on the Tesuque, (3) state which Pueblo

needs the additional water at issue, (4) identify the location of the Non-Pueblo Settlement Party

water use supposedly causing the problem, and, (5) perhaps most importantly, does not identify

which of the Dunn Parties’ rights are allegedly being injured.

Similarly speculative, the Atencio Response incorrectly assumes that, if the OSE

administers water consistent with the Settlement Agreement and Partial Final Judgment and

Decree, the OSE will be acting ultra vires. Atencio Mem. at 23-24. N.M. Admin. Code §

19.27.5.13(B)(6) expressly states that administration can be limited by court-imposed restrictions

and obviously nothing can authorize the OSE to act in an ultra vires manner.9 And the Atencio

Response wrongly ignores the broad authority of the OSE. See New Mexico ex rel. Reynolds v.

Aamodt, 800 P.2d 1061, 1062 (N.M. 1990) (“The legislature granted the State Engineer broad

powers to implement and enforce the water laws administered by him.”). Administering water

rights consistent with this Court’s order would not transform the OSE’s role to an adjudicator.

See N.M. Stat. Ann. § 72-2-8(H) (“Any . . . order issued by the state engineer is presumed to be

in proper implementation of the provisions of the water laws administered by him.”). Any

9 The Settlement Agreement does not violate the Domestic Well Statute, N.M. Stat. Ann. § 72-

12-1.1 (“DWS”), see Atencio Resp. at 7, as established in the unrefuted argument in the United

States’ and Pueblos’ Memorandum at 41-48; id. at 46 (water permitted under the DWS is subject

to court-imposed limitations). See also Bounds v. State ex rel. D’Antonio, 306 P.3d 457, 466

(N.M. 2013) (stating the DWS “do[es] not create an absolute right to take water”).


15

speculation that the OSE’s administration would violate State law or this Court’s order is

unfounded and otherwise not ripe for consideration.

B. The Settlement Agreement and Entry of the Partial Final Judgment and Decree Do Not Unfairly Impact Non- Settling Parties.

The Dunn Response devotes substantial effort to arguing the Settlement Agreement

“negatively harms and impacts non-settling parties.” Dunn Resp. at 7.10

This appears to be

based on an interrelated, two-fold argument that, (1) the implementation of the Settlement

Agreement will violate the doctrine of priority administration; and (2) water users are harmed by

priority administration. The Settlement Agreement, however, in addition to providing many

protections and benefits to settling non-Pueblo water users, merely confirms the status quo, and

in no way penalizes non-settling parties. The argument that the Settlement Agreement subjects

non-settling parties to priority enforcement remarkably ignores that these water users, as all

water users in the Basin, have always been subject to priority administration. Approval of the

Settlement Agreement and entry of the Partial Final Judgment and Decree will not change this

and, as described above, need not result in any more onerous priority enforcement as against

non-settling parties. Indeed, through the Settlement Agreement, the Pueblos are compromising a

significant amount of the water to which they likely would be awarded at trial. Accordingly, if

the Settlement Agreement and Partial Final Judgment and Decree are not approved, the risk of a

priority call would be substantially greater for all non-Pueblo users. Not only are both settling

and non-settling water users not harmed by the Settlement Agreement, they are significantly

10

The citation to Settlement Agreement § 2.4.4.2.2 does not demonstrate any harm to non-

settling parties. That section is part of the consideration provided to settling parties with surface

water rights: it requires the Pueblos to offset any interference with Non-Pueblo surface water

rights, in accordance with Section 4, which provides limitations on enforcement of priority rights

for non-Pueblo well users who elected to join the Settlement Agreement. These provisions are

not penalties against non-settling parties; they represent a compromise among the settling parties.


16

benefited by the Settlement Agreement and its implementation as a result of greater security and

certainty of water supply.

In the end a crucial point is missed by the Responses: the Settlement Agreement and

Partial Final Judgment and Decree adjudicate and settle the water rights of the Pueblos. Neither

adjudicates the quantity, priority, or any other aspect of any non-Pueblo rights. The Settlement

Agreement itself does not “cram it[s terms] down the Objectors’ collective throats.” Atencio

Resp. at 28. The benefits of the Settlement Agreement to settling non-Pueblo water rights

owners cannot be overstated. It provides ample consideration, in the form of protection from

Pueblo priority calls, for domestic well owners who choose to join. See Settlement Agreement §

3.1; see generally U.S. & Pueblo Mem. at 39-41 (discussing benefits to domestic well owners).

Indeed, the offer and acceptance of the consideration in Section 3.1.7.2 is a crucial aspect of the

Settlement Agreement for all. The Settlement Agreement does not prevent an inter se between

the non-Pueblo parties. It does, however, protect all parties from an inter se challenge by the

United States or the Pueblos. Settlement Agreement § 6.1; see White Mem. at 9 (noting a benefit

of the Settlement Agreement is dismissal with prejudice of the 1983 inter se challenges). As

between the non-settling parties, the status quo remains; settling parties, in consideration for

reduction in use, receive protection from priority enforcement by the Pueblos with no harm to

non-settling non-Pueblo water users.

The White Memorandum properly recognizes that the Settlement Agreement provides the

Pueblos with substantially less water than is available under the Court’s prior rulings, and

demonstrates the Settlement Agreement fairly balances the surface water rights of Pueblo and

non-Pueblo users. See White Mem. at 7-8. Under the Settlement Agreement, a surface water

right “is not ‘forfeited,’ it only loses priority protection which protection it would not even have


17

without the Settlement.” Id. at 8 (emphasis added). The Settlement Agreement does not unfairly

harm non-settling non-Pueblo ground or surface water rights holders and none of the objections

or Responses substantiate any harm.

C. The Responses Fail to Substantiate Any Legal or Factual Objections to the Settlement Agreement or Partial Final Judgment and Decree.

1. The Settlement Agreement and Partial Final Judgment and Decree properly utilize

federal law to quantify the Pueblos’ water rights.

The objections that federal law has no role in the adjudication of the Pueblos’ rights are

incorrect and must be rejected for at least two reasons. See Atencio Resp. at 8. First, it is

beyond debate that Pueblo water rights are determined under and controlled by federal law. See

New Mexico v. Aamodt, 537 F.2d 1102, 1112 (10th Cir. 1976) (“Aamodt I”); U.S. & Pueblo

Mem. at 15-19. Second, this Court’s rulings in the adjudication comport with the McCarran

Amendment, 43 U.S.C. § 666, a statute that is procedural in nature and does not affect the

substantive rights of the parties to a stream adjudication or otherwise direct that the Pueblos’

federal water rights should be determined under anything but federal law.

The Responses ignore the Tenth Circuit’s ruling in this case that “[t]he rights of the non-

Indians are subject to the water laws of New Mexico. The water rights of the Pueblos are not

subject to the laws of New Mexico because the United States has never surrendered its

jurisdiction and control.” Aamodt I, 537 F.2d at 1112. Colorado River Water Conservation

District v. United States, 424 U.S. 800, 812-13 (1976), only instructs that federal Indian water

rights, the quantity of which are governed by federal law, may be adjudicated in a stream

adjudication. Cf. Atencio Resp. at 9, 13. Morton v. Mancari, 417 U.S. 535, 554 (1974), does not

require the Court to apply state law to quantify the Pueblos’ water rights as argued in the Atencio

Response, at 9-10. The Atencio Response ignores that Morton is in the line of cases which


18

“establishes that the Pueblos have aboriginal title, Indian rights or original Indian rights to their

lands and the use of them including appurtenances.” Aamodt II, 618 F. Supp. at 1009.

Furthermore, there is no limitation on the uses to which the Pueblos may put the water to which

they have water rights. Compare Memorandum Opinion and Order at 3-4 (Dec. 1, 1986) (Doc.

2879) (“Congress did not abrogate the Pueblo’s right to transfer water to unenumerated uses.”)

with Atencio Resp. at 10 (“Leasing the water was not the primary purpose for reserving the

Pueblos’ water in this case.”).

The use of Federal law and State law in the same adjudication does not violate equal

protection. See Atencio Resp. at 24-26; Dunn Resp. at 15-18. To accept the Responses’

allegations of a “double standard” of treatment for Pueblo and non-Pueblo water claimants, the

Court must ignore that treatment of Native Americans as a separate class is “not violative of the

Equal Protection principle.” Jicarilla Apache Tribe v. United States, 601 F.2d 1116, 1126 (10th

Cir. 1979). Adjudicating the Pueblos’ water rights under federal law and the non-Pueblo rights

under state law does not require a “compelling reason”; rather, it needs to be rationally related to

“furthering Indian self-government . . . .” Morton, 417 U.S. at 550. The goal of federal law

governing Pueblo water rights, is exactly this, see Aamodt I, 537 F.2d at 1108, and thus

application of two sets of laws in this adjudication does not violate equal protection.11

See U.S.

& Pueblo Mem. at 14-20.

Finally, the Responses confuse the procedural protections of the McCarran Amendment

for a substantive requirement of stream adjudications involving federal law. Atencio Resp. at 6,

8-9. The McCarran Amendment waives the United States’ sovereign immunity for stream

11

The Atencio Response argues the United States and Pueblos should be realigned as

defendants. Atencio Resp. at 8, 26. The Court has already rejected this argument.

Memorandum Opinion & Order (July 29, 2011) (Doc. 7454); see also Order (Feb. 13, 1967)

(Doc. 143) (realigning the United States and the Pueblos as plaintiffs).


19

adjudications and, to a limited extent not relevant here, administration. It does not discuss, much

less direct, the law that must be used to determine the quantity and type of water rights. See Gila

VII, 173 P.3d at 446 (rejecting the contention that the settlement of federal water rights claims of

the Tohono O’odham Nation violates the McCarran Amendment). The Atencio Response argues

that the McCarran Amendment subjects the adjudication of the United States’ and Pueblos’

water rights claims to state law. Atencio Resp. at 8. The Pueblo water rights are plainly

determined under and controlled by federal law, and nothing in the McCarran Amendment alters

that substantive law. Aamodt I, 537 F.2d at 1112; U.S. & Pueblo Mem. at 15-19.

Moreover, the McCarran Amendment permits, but does not require federal law-based

claims to be adjudicated in state court. See U.S. & Pueblos’ Mem. at 55; see Arizona v. San

Carlos Apache Tribe of Ariz., 463 U.S. 545, 566-67, 571 (1983). But even if this was a stream

adjudication in a New Mexico state court addressing the claims in the Basin, that would not alter

the fact that the United States’ and Pueblos’ claims must be adjudicated under federal law,

regardless of the forum. It is incorrect as a matter of long established law to assert that “the

McCarran Amendment places the U.S.A. and the Pueblos under a single legal standard as all

other claimants.” Atencio Resp. at 9. The United States’ and Pueblos’ claims must be

adjudicated under a different legal standard than claims asserted under state law, regardless of

the forum in which the claims are adjudicated, because those claims arise under a different legal

standard. See U.S. & Pueblos’ Mem. at 50. The Supreme Court has emphasized that its opinions

“in no way change[] the substantive law by which Indian rights in state water adjudications must

be judged. State courts, as much as federal courts, have a solemn obligation to follow federal

law.” San Carlos Apache Tribe, 463 U.S. at 571. Administration of the United States’ and

Pueblos’ rights under a legal regime that is different from the administration of rights claimed


20

under New Mexico law is the correct result of the settlement of the Pueblos’ claims under the

Settlement Act and long-standing federal law.

2. The State properly executed the Settlement Agreement and is a proper party.

Relying on its baseless argument that the Settlement Agreement creates new law, see

Section III.A.1, supra, the Dunn Response argues the State does not have the authority to enter

into the Settlement Agreement. Dunn Resp. at 8-9, 23-24. The Settlement Agreement was

negotiated pursuant to Court-ordered mediation to resolve this longstanding litigation among the

parties including the State of New Mexico. Subsequently the parties and the State properly

executed the result of that mediated resolution and ultimately the Settlement Agreement was

approved by federal legislation. See Settlement Act. The Dunn Response now attempts to

convert the Settlement Agreement into something it is not: a federal water compact. In New

Mexico ex rel. Clark v. Johnson, on which the Dunn Response, at 23, relies, the New Mexico

governor negotiated and entered into a number of gaming compacts with New Mexico Pueblos.

904 P.2d 11, 16 (N.M. 1995). The New Mexico Supreme Court concluded that by doing so, the

governor violated state constitutional separation of powers principles by changing existing law

without legislative approval. Id. at 26. The Dunn Response fails to explain why this Court

should treat a settlement agreement between numerous parties, in a stream adjudication nearing

its fifth decade, as a unilateral compact negotiation by the State of New Mexico. The settlement

of litigation is wholly within the purview of the executive branch.12

And, as explained in Section

III.A.1.b, supra, nothing in the Settlement Agreement changes State law.

12

The New Mexico Supreme Court recently denied a Writ of Mandamus raising the same issue

with regard to the settlement of the Navajo Nation water rights claims in the context of the San

Juan River stream adjudication. See Order, New Mexico v. Interstate Stream Comm’n, No.

34,702 (N.M. May 30, 2014).


21

Moreover, under New Mexico law, “only the courts are given the power and authority to

adjudicate water rights.” New Mexico ex rel. Reynolds v. Lewis, 508 P.2d 577, 581 (N.M. 1973);

see N.M. Stat. Ann. § 72-4-17 (providing courts with exclusive jurisdiction over stream

adjudications). Thus, converse to the argument presented in the Dunn Response, separation of

powers principles would be violated if the New Mexico Legislature were to attempt to assert

authority over any aspect of this litigation or its settlement.13

Furthermore, it is the inherent right

of a party to litigation to enter into a settlement agreement. San Juan Cnty., Utah v. United

States, 503 F.3d 1163, 1173 (10th Cir. 2007) (“‘It has never been supposed that one party—

whether an original party, a party that was joined later, or an intervenor—could preclude other

parties from settling their own disputes and thereby withdrawing from litigation.’”) (quoting

Local No. 93, 478 U.S. at 528–29). The State, through the Attorney General, was fully

authorized to enter into the Settlement Agreement. See N.M. Stat. Ann § 72-4-15 (stating the

Attorney General is authorized to prosecute stream adjudications); id. § 36-1-22 (stating the

Attorney General is authorized to settle claims in litigation). The attempt to characterize the

Settlement Agreement as a compact requiring legislative approval is groundless.

3. The Settlement Agreement does not violate any property rights.

In New Mexico, a water right is a real property right. Walker v. United States, 162 P.3d

882, 893 (N.M. 2007). This does not mean, however, that limitation of the amount a well owner

may use, whether by consensual settlement or by an administrative rebuttable presumption,

violates a property right, contrary to the Atencio Response’s contentions, at 19-21. See U.S. &

13

The New Mexico House of Representatives has, however, issued House Memorials in support

of the settlement of the claims in this litigation on multiple occasions, including prior to the

signing of the Settlement Agreement in the 2006 Regular Session. See H.M. 3, Native American

Water Rights Settlement Funds, Reg. Sess. (N.M. 2006); see also H.J.M. 22, Indian Water

Rights Disputes Funding, Reg. Sess. (N.M. 2013).


22

Pueblo Mem. at 44-48, 55; State Mem. at 46-50. Indeed, the New Mexico Supreme Court’s

holding in Bounds, 306 P.3d at 466, forecloses such an argument. No New Mexico statute or

regulation creates an “entitlement” to 3.0 acre-feet per year (“afy”), as the Atencio Response, at

22-23, insists. Indeed, N.M. Admin. Code § 19.27.5.9(D), upon which the Atencio Response

relies, expressly provides that a diversion is limited to 1.0 afy, unless an applicant demonstrates

that a larger diversion will not impair existing rights. See U.S. & Pueblo Mem. at 43;

Memorandum Opinion & Order at 7 (Mar. 30, 2012) (Doc. 7579) (rejecting the argument that a

permit creates an “entitlement” and concluded that the DWS “does not grant a domestic well

permit holder an absolute right to use one acre-foot of water for noncommercial irrigation”).

Because permit holders have no entitlement to a specific quantity of water, the Settlement

Agreement, by allowing a presumption of .5 afy for a domestic well right subject to

demonstrating a higher beneficial use, does not violate due process by depriving the objectors of

a protected property interest. Id. at 8; see also Bounds, 306 P.3d at 469. There is no protected

property interest in 3 afy absent a demonstration of beneficial use.

Regardless, neither the Settlement Agreement nor the Partial Final Judgment and Decree

adjudicates any domestic well right, or any other water right other than the rights of the Pueblos.

The water rights of non-Pueblo users are quantified under State law, which permits a water

claimant to set forth evidence of beneficial use to establish a priority date. See N.M. Stat. Ann. §

72-1-2.14

Section 3.1.2.2 provides all DWS wells “shall be limited to the historic beneficial use

from such well” of no greater than 3 afy, with the presumption of historic beneficial use of .5 afy

per household, “unless a greater historic beneficial use is shown or unless a more restrictive

14

The Atencio Response posits that “non-Indians residing in the Pojoaque Basin also acquired

rights before 1956 and before 1848” and argues that pre-1848 wells are omitted from the

Settlement Agreement. Atencio Resp. at 16-17. The Settlement Agreement, however, expressly

permits priority to be adjudicated for a pre-1956 well. Settlement Agreement, § 3.1.1.1.


23

diversion limit applies pursuant to court order, covenant or ordinance.” All non-Pueblo well

owners are entitled to an adjudication of their water right fully in accord with existing state law.

Nor has procedural due process been violated, and the Settlement Agreement is not fait

accompli, as the Atencio Response, at 28-30, suggests.15

A substantial opportunity to file

objections, and briefs supporting those objections, was provided through the CMO. The

statement that, “[i]f the [S]ettlement [A]greement is approved, the Objectors will be required to

immediately transfer equitable title to their water rights to the County of Santa Fe, and to commit

to transfer their ownership of all water rights to the County, or agree to reduce their use to 0.3

afy,” Atencio Resp. at 30, is patently false. The Settlement Agreement does not require any

transfer let alone “immediate” transfer. Rather, based on a voluntary choice to connect to the

County Water Utility, discontinuation of the use of the domestic well and the actual connection

to the utility, then, and only then is there a voluntary transfer of the settling parties’ former rights

to its well in consideration for service from the Regional Water System. Settlement Agreement §

3.1.8.1.

The Atencio Response lists a number of additional reasons the Settlement Agreement is

allegedly unfair.16

The Atencio Response argues that: (1) the Settlement Agreement would

declare the basin closed to new permits for domestic wells; (2) there is no showing that the Basin

15

The Dunn Response, at 18-19, concedes that procedural due process has been satisfied, and the

United States and the Pueblos do not see the relevance of the Dunn Response’s sole authority in

support of its due process argument, Mugler v. Kansas, 123 U.S. 623, 675 (1887) (holding a

statute prohibiting beer production did not violate the due process rights of a beer producer).

16

The Atencio Response also argues—albeit with improperly cited statutes—the Court’s Order

dated January 13, 1983 (Doc. 641) violates the Anti-Injunction Act, 28 U.S.C. § 2283, and the

statute requiring three-judge panels in limited circumstances, 28 U.S.C. § 2284. Atencio Resp. at

4-5. For the reasons stated in Plaintiffs-in-Intervention Response Opposing Defendant Trujillos’

Motion to Quash the Preliminary Injunction Or, Alternatively, For Three Judge Court at 2-3

(Nov. 18, 2014) (Doc. 9927), neither statutory provision is applicable in this case.


24

is entirely appropriated; (3) the Settlement Agreement does not address use of unappropriated

water; (4) the proposed regional water system will not cover the entire Basin; (5) the

construction of the regional water system is not guaranteed; (6) domestic well owners are not

allowed to irrigate; (7) the preliminary injunction on outdoor irrigation is made permanent by the

Settlement Agreement without a hearing; and (8) Basin water will be leased to the City and

County, when they could have taken the water by eminent domain and provided just

compensation. Atencio Resp. at 32-33. Each objection may be briefly addressed and disposed.

The first, second, and third arguments essentially argue that the Basin is not fully

appropriated, and thus there is no need for limitations on water use. The Settlement Agreement,

however, declares that the Basin is fully appropriated. Settlement Agreement § 5.1.1. The OSE

has full discretion to declare a basin closed. See N.M. Stat. Ann. § 72-2-9. Furthermore, the

decades of litigation over water supports that this is a water-short Basin, and that in order to

properly recognize Pueblo senior water rights, and protect all existing water rights, the OSE

acted within its discretion in declaring the Basin closed. The Atencio Response’s proffered

“uncontroverted” evidence cannot create an issue of fact. Atencio Resp. at 23, and Ex. 1. The

single page conclusory letter from Francis West, dated August 30, 2012, states, without analysis,

that the surface water and ground water in the Basin is not hydrologically connected, and the

aquifer contains 55 million acre feet of water. This “evidence” is disproven by the Court’s

findings made on record evidence. Hydrology issues were thoroughly litigated before Special

Master Harl Byrd in the early 1990s. See Order Re Hydrology Matters (July 17, 1991) (Doc.

3783); Order Re Hydrology Segment (Aug. 19, 1991) (Doc. 3826); Order to Show Cause (Aug.

6, 1992) (Doc. 4006). Counsel and hydrologists for the State, the United States, the Pueblos, and

certain non-Pueblo parties participated in the creation of the proposed findings. The Special


25

Master submitted his report to the Court recommending adoption of the findings a year later.

Special Master’s Report to the Court Recommending Adoption of Findings of Fact Pertaining to

Hydrology (April 6, 1993) (Doc. 4163) (“Hydrology Report”). The Report details the extensive

legal and hydrological work that was done at that time and all of the responses of various parties

to the Order to Show Cause, including hearings on February 16 and March 11, 1993, where

evidence was presented. Id., Appendix A at 8. It concluded that the Basin’s groundwater and

surface water are hydrologically connected, id. at 6, ¶ 8, and that groundwater storage contains

approximately five to ten million acre feet, id. at 14, ¶ 42. The Court adopted the Findings of

Fact. Order (May 6, 1993) (Doc. 4178). The Findings establish that the issues raised by the

Atencio Response were addressed at that time.

The fourth and fifth arguments concern the regional water system, and are essentially

identical objections which were addressed in the United States and Pueblos’ Memorandum, at

67-69, and referenced and incorporated herein. The sixth and seventh arguments concern limits

on outdoor irrigation, and are addressed in the States’ Memorandum, at 51-54, and referenced

and incorporated herein. The eighth argument addresses the Pueblos’ leasing rights and argues

that the County should use its power of eminent domain to obtain necessary water, essentially

conceding that the Settlement Agreement does not effectuate a taking. The leasing provisions

are fair, reasonable, and consistent with the law, thus there is no need for the Court to rewrite

them. See States’ Mem. at 34-37.

The Atencio Response also seems to argue that rulings made prior to the time water

rights holders were joined as parties are not binding on those parties. Atencio Resp. at 31-32.

This is not legally supportable. The Partial Final Judgment and Decree adjudicates only the

water rights of the four Pueblos. The water right of each individual party is adjudicated in a


26

separate sub-file. Because a stream adjudication is “in the nature of an in rem proceeding,” each

separate sub-file order binds the water right owner and subsequent owners of those adjudicated

water rights. Nevada v. United States, 463 U.S. 110, 144 (1983). Furthermore, while a water

right owner’s right is adjudicated in a sub-file, that right is subject to limitations on its exercise

as determined in the adjudication and by all applicable laws. See N.M. Stat. Ann. § 72-4-19. A

water right owner has no right to relitigate how a water right may be exercised. If the Court

enters the Partial Final Judgment and Decree, it will be binding on all current parties to this

adjudication. See United States v. Bluewater-Toltec Irr. Dist., 580 F. Supp. 1434, 1438 (D.N.M.

1984) aff'd sub nom. U.S. for & on Behalf of Acoma & Laguna Indian Pueblos v. Bluewater-

Toltec Irrigation Dist. of N.M., 806 F.2d 986 (10th Cir. 1986) (“Before a decree as provided in

section 72–4–19, can be entered, known claimants must be impleaded. That is not to say,

however, that all potential claimants must be made parties at the time the complaint is filed.”)

(internal citations omitted).

The objections set forth in the Atencio Response asserting the Court’s established

procedure is infirm and that the Settlement Agreement and Partial Final Judgment and Decree

are unfair should be overruled.

D. No Response Establishes the Need for Additional Procedures.

The procedures established by the Court in the CMO have proved more than satisfactory

for presenting all objections to the Settlement Agreement. The Atencio Response asserts, in

passing only, that the lack of discovery has limited their ability to support their arguments. See

Atencio Resp. at 22 (“[D]iscovery on the amounts of groundwater and use amounts has been

severely restricted.”) (citing Doc. 7967, an order limiting the scope of a single deposition); id. at

27-28. As discussed above, significant litigation occurred, however, prior to the Court’s


27

adoption of the Hydrology Report, and need not be revisited. Regardless, any discovery the

Atencio Response may believe is necessary appears to be related to individual subfile

proceedings and those proceedings are unrelated to the Settlement Agreement and thus the

request for discovery is irrelevant.17

The Atencio Response argues the Federal Rules of Civil Procedure are not being applied

by the CMO’s procedures. Atencio Resp. at 29-30. This argument ignores that a settlement

agreement is not a complaint, and also ignores the inherent control the Court has over the case

which has been before it since 1966. See Ratzlaff v. Seven Bar Flying Serv., Inc., 646 P.2d 586,

591 (N.M. Ct. App. 1982);18

see also Landis v. N. Am. Co., 299 U.S. 248, 254 (1936) (noting

“the power inherent in every court to control the disposition of the causes on its docket with

economy of time and effort for itself, for counsel, and for litigants”). Objecting parties are not

“entitled to a trial on the merits of their objections,” Atencio Resp. at 30; the procedure

established in the CMO provides ample opportunity for objections to be made, evidence to be

presented, and the Court to consider whether approval of the Settlement Agreement and entry of

the Partial Final Judgment and Decree would harm the objecting parties and whether that action

and approval of the Settlement Agreement is not fair and reasonable, not in the public interest or

inconsistent with applicable law. See Johnson, 393 F.3d at 1109.

No further proceedings are needed. The Responses have not articulated any harm to any

individual objectors’ water right or otherwise shown why the Settlement Agreement and Partial

17

The Pueblos’ existing water rights, and uses, are set forth in the Partial Final Judgment and

Decree, and thus no discovery is necessary on that point. The multi-decade litigation in this case

provides ample technical and related information regarding all aspects of the Pueblos’ rights and

water use in the basin.

18

The Dunn Response objects to reliance on Ratzlaff. Dunn Resp. at 6-7. The effort of the Dunn

Response’s attack on Ratzlaff is puzzling, as it was cited to demonstrate New Mexico’s policy of

favoring settlements, a point not disputed. U.S. & Pueblo Resp. at 27.


28

Final Judgment and Decree are not fair, adequate, reasonable, not in the public interest, or not

consistent with applicable law. The deadline for objections and supporting briefs has passed, the

objectors have not established that they are specifically harmed by the Settlement Agreement or

entry of the Partial Final Judgment and Decree. There is absolutely no rational justification

legally, factually or procedurally, for further briefing on the same subject, nor an evidentiary

hearing, nor for oral argument beyond any the Court schedules in conjunction with the present

briefing.

IV. CONCLUSION.

For the reasons set forth in the United States and Pueblos’ Memorandum, the States’

Memorandum, and herein, the Court should overrule all objections, approve the Settlement

Agreement, and enter the Partial Final Judgment and Decree and further orders as the Court

deems necessary.

Respectfully submitted this 4th day of February, 2015.

/s/ electronic approval

Andrew “Guss” Guarino

U.S. Department of Justice

Environmental and Natural Resources

Division

999 18th

Street

Denver, CO 80202

Phone: 303-844-1343

Fax: 303-844-1350

[email protected]

Attorneys for the United States of America


Scott B. McElroy

Alice E. Walker

McElroy, Meyer, Walker and Condon, P.C.

1007 Pearl Street, Suite 220

Boulder, CO 80302

Phone: 303-442-2021

Fax: 303-444-3490

[email protected]

Attorneys for the Pueblo of Nambé


29

/s/ Maria O’Brien

Maria O’Brien

Sarah M. Stevenson

Modrall Sperling

P.O. Box 2168

Albuquerque, NM 87103

Phone: 505-848-1803

Fax: 505-848-9710

[email protected]

[email protected]

Attorneys for the Pueblo of Pojoaque


Peter C. Chestnut

Ann Berkley Rodgers

Chestnut Law Offices

P.O. Box 27190

Albuquerque, NM 87125

Phone: 505-842-5864

Fax: 505-843-9249

[email protected]

[email protected]

Attorneys for the Pueblo de San Ildefonso


Majel Russell

Elk River Law Office

145 Grand Avenue, Suite 5

Billings, MT 59101

Phone: 406-259-8611

Fax: 406-259-3251

[email protected]

Attorneys for the Pueblo of Tesuque


30

CERTIFICATE OF SERVICE

I hereby certify that, on February 4th, 2015, the PLAINTIFFS-IN-INTERVENTION REPLY IN SUPPORT OF ENTRY OF PARTIAL FINAL JUDGMENT AND DECREE was filed electronically through the CM/ECF system, which caused CM/ECF Participants to be

served by electronic means, as more fully reflected on the Notice of Electronic Filing.

I further certify that, on February 4th, 2015, copies of the foregoing were mailed by first-

class United States mail to the following non-CM/ECF Participants:

Elmer Lee Waite

55 Banana Lane

Santa Fe, NM 87506

Mary G.B. Waite

55 Banana Lane

Santa Fe, NM 87506

Ramona Gonzales

17 Camino del Ojito

Santa Fe, NM 87506

Serota LLC

2218 Old Arroyo Chamiso

Santa Fe, NM 87505

Paul F. Romero

Rt. 4 Box 20

Santa Fe, NM 87506

Aniver R. Roybal

27 Mi Ranchito

Santa Fe, NM 87506

Larry D. Roybal Sr.

4609 Aquamarine

Rio Rancho, NM 87124

Robert C. Dick

P.O. Box 236

Tesuque, NM 87574

Felice Garduno

4 CR 119N

Santa Fe, NM 87506

Phillip I. Lujan

13A Feather Catcher

Santa Fe, NM 87506

Audelia Roybal

366 CR 84

Santa Fe, NM 87506

Roy Heilbron Sr.

1524A Bishops Lodge Road

Santa Fe, NM 87506

Jose A. Valdez

282 A State Road 503

Santa Fe, NM 87506

Dan Valencia

84C County Road 84B

Santa Fe, NM 87506

Joseph R. Vigil

02 Ricardos Ct.

Santa Fe, NM 87506

DeZevallos 2012 Family Trust

9219 Katy Frwy. #120

Houston, TX 77024

Filia Valdez Duran

280 State Road 503

Santa Fe, NM 87506

Mariano Garcia

11 Callejon Valdez

Santa Fe, NM 87506

Ignacio Carreno

105-A County Road 84C

Santa Fe, NM 87506

Christina D. Lopez

County Road 84C 1 Ricardos Ct.

Santa Fe, NM 87506

Stella M. Garduno

2 CR 119 N

Santa Fe, NM 87506

Juanita Misere

64 Summer Road

Santa Fe, NM 87506

Cecilia G. Popp

28 Harriet’s Road

Santa Fe, NM 87506

Jose Isaudro Salazar

01 State Road 503

Santa Fe, NM 87506

Barak Wolff

28 Harriet’s Road

Santa Fe, NM 87506

Esquipula N. Valdez

05 Caminito Valdez

Santa Fe, NM 87506

Jose and Margarita Trujillo

28A Grazing Elk Drive

Santa Fe, NM 87506

Seferino & Ruby Valdez

5 Kokopelli Dr

Santa Fe, NM 87506

Mary Berkeley

125 B County Rd 84

Santa Fe, NM 87506

Mabel Bustos

1834 Sunset Gardens Rd SW

Albuquerque,NM,87105

George Valdez

11 Caminito Valdez

Santa Fe,NM,87506

Oralia Quintana

387-A County Road 84

Santa Fe, NM 87506

Christen B. & Howell Howell

P.O. Box 636

Los Alamos,NM,87544

Amy Louise Roybal

22 AB Jose Alfredo Lane

Santa Fe,NM,87506

Jose Alfredo Roybal

22 AB Jose Alfredo Lane

Santa Fe,NM,87506

Rosalita Trujillo

9 Calle Tia Louisa

Santa Fe,NM,87506


31

Robert Valencia

Rt 5 Box 304

Santa Fe,NM,87506

Robert Valencia

Rt 5 Box 304

Santa Fe,NM,87506

Isauro Valencia

84C County Road 84B

Santa Fe, NM 87506

David Roybal

10 Aaron y Veronica Road

Santa Fe, NM 87506

David Roybal

10 Aaron y Veronica Road

Santa Fe, NM 87506

Tranquilino Vigil

19 Short Road

Santa Fe, NM 87506

Loyola E. Gomez

430 County Road 84

Santa Fe, NM 87506

Josie G. Martinez

22B North Shining Sun

Santa Fe, NM 87506

Louie J. Romero

34 Callejon de Atanacio

Santa Fe, NM 87506

Pedro N. Romero

06 Nuestro Callejon

Santa Fe, NM 87506

Mary Ortiz

41 Camino Chupadero

Santa Fe, NM 87506

Marie Noelle Meyer

7 Tod’s Driftway

Old Greenwich, CT 06870

Pedro I. Garcia

15 Camino Catalina

Santa Fe,NM,87506

Roberta R. Fine

258 B CR 84

Santa Fe, NM 87506

Kathryn S. Brotheron

28 County Road 89-D

Santa Fe, NM 87506

Colleen Ortiz

340 A County Road 84

Santa Fe, NM 87506

Ruth Roybal

P.O. Box 515

Tesuque, NM 87574

Gabriel A. Herrera

77AB Feather Catcher Road

Santa Fe, NM 87506

David R. Herrera

99 Feather Road

Santa Fe, NM 87506

Jerome T. & Susan R. Wolff

8 Molino Viejo

Santa Fe, NM 87506

Alexandra Doty

110 CR 84

Santa Fe, NM 87506

Jose L. Lopez

245 State Road 503

Santa Fe, NM 87506

Ernesto R. Lujan

5 Calle de Vecinos

Santa Fe, NM 87506

Eric Matthew Romero

Rt. 4 Box 20

Santa Fe, NM 87506

Louise L. Jimenez

10 Sombra de Jose

Santa Fe, NM 87506

Leslie Beaty

P.O. Box 177

Tesuque, NM 87574

Deborah Dant

P.O. Box 301

Tesuque, NM 87574

Kay Lee Family Partnership

6214 Preston Road

Dallas, TX 75205

Gail Factor-Wilkinson

P.O. Box 276

Tesuque, NM 87574

Chester H Johnson

551 Canyon Rd.

Santa Fe, NM 87501

Las Acequias de Chupadero

C/O William Lazar

PO Box 776

Tesuque, NM 87574

Reymundo J Lopez

12 Bouquet Lane

Santa Fe, NM 87506

Patricia Mary

P.O. Box 962

Los Alamos, NM 87544

Cynthia A. Miscikoski

396 Fordyce Rd.

Los Angeles, CA 90049

Barak Wolff

28 Harriet’s Road

Santa Fe, NM 87506

Carlos Sena

P.O. Box 366

Tesuque, NM 87574

Diane Senutovitch

P.O. Box 303

Santa Fe, NM 87504

Jose and Margarita Trujillo

28A Grazing Elk Drive

Santa Fe, NM 87506

/s/Maria O’Brien

Maria O’Brien

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